Allstate Ins. Co. v. Canell, 3:13 CV 1182.

• Decision Date: 22 September 2015
• Docket Number: No. 3:13 CV 1182.,3:13 CV 1182.
• Citation: 133 F.Supp.3d 1124
• Parties: ALLSTATE INSURANCE COMPANY, Plaintiff, v. David L. CANELL, Deceased, Estate of David L. Canell, and Angela Campoli, Defendants.
• Court: U.S. District Court — Northern District of Indiana

133 F.Supp.3d 1124

ALLSTATE INSURANCE COMPANY, Plaintiff,

v.David L. CANELL, Deceased, Estate of David L. Canell, and Angela Campoli, Defendants.

No. 3:13 CV 1182.

United States District Court, N.D. Indiana, South Bend Division.

Signed Sept. 22, 2015.

Richard P. Samek, Carson Boxberger LLP, Fort Wayne, IN, for Plaintiff.

Mark A. Matthes, Yoder Ainlay Ulmer & Buckingham LLP, Goshen, IN, for Defendants.

OPINION AND ORDER

JAMES T. MOODY, District Judge.

I. BACKGROUND

In 2011, David Canell was an aging veteran with congestive heart failure. (DE # 53–5 at 4, 7, Campoli Dep. 18, 21.) Canell was on a wait list for hospice care, so his family decided to hire defendant Angela Campoli to care for Canell in his home. (DE # 53–5 at 3–4, Campoli Dep. 17–18.) Campoli first met with Canell's three daughters on September 20, 2011, at Canell's residence to discuss the caretaking responsibilities that Campoli was to perform. (Id. ) On that date, Canell was introduced to Campoli and it was explained to him that Campoli would be taking care of him. (Id. at 5, Campoli Dep. 19.)

The next day, Campoli arrived at 5:00 a.m. and let herself in with a key left for her in a lockbox. (Id. at 8, Campoli Dep. 22.) As she approached, she heard yelling from inside the residence. (Id. at 9, Campoli Dep. 23.) When she unlocked the door, she saw Canell laying on the floor in the living room. (Id. at 10, Campoli Dep. 24.) Campoli helped Canell off the floor and placed him in his recliner. (Id. ) Campoli told Canell who she was, that they had met the day before, and that she was there to help take care of him. (Id. at 11, Campoli Dep. 25.) Canell said, "Thank God you're here." (Id. )

Canell asked to go to his bedroom, but then proceeded to veer towards the kitchen in his walker. (Id. at 12–13, Campoli Dep. 29, 32.) Campoli asked him if he wanted something to eat, but he said no, that he wanted to go to his bedroom. (Id. at 13, Campoli Dep. 32.) Canell proceeded down the hallway in his walker, and sat down on his bed. (Id. at 13–14, Campoli Dep. 32, 34.) Canell was seated across from a six-dresser drawer, which had three drawers on each side. (Id. at 14, Campoli Dep. 34.)

Canell opened the middle drawer on the right side, pulled out a box marked "hearing aid batteries and hearing aid," and handed it to Campoli, but when Campoli asked him if he wanted his hearing aid, he said no. (Id. at 14–15, Campoli Dep. 34–35.) He then asked Campoli what the "white thing" was in his drawer; Campoli pulled it out, discovering that it was a memorial book for his wife. (Id. at 16, Campoli Dep. 36.) Campoli asked Canell if he wanted to look at it, but Canell said no. (Id. ) Campoli replaced the hearing aid box and memorial book in the drawer and closed it. (Id. ) At this point, Canell was starting to breath more heavily, was uncordial, was getting agitated and louder, was shaky, and was fidgeting with his hands. (Id. at 16–17, Campoli Dep. 36–37.) Campoli asked if he was ok, and he requested that Campoli bring him a glass of water. (Id. at 16–17, Campoli Dep. 36–37.) Campoli did so, and was gone from the room for about a minute. (Id. at 17, Campoli Dep. 37.)

As Campoli returned to the room, she saw Canell standing straight up at the dresser, having pulled open the top drawer on the right side. (Id. at 18, Campoli Dep. 38.) Campoli saw a revolver in the drawer on top of a stack of t-shirts. (Id. ) Campoli spilled the water, and then set the glass down. (Id. ) As she did so, Canell took the revolver into his hand. (Id. ) Canell sat down on the bed, and put the gun to his head. (Id. at 19, Campoli Dep. 39.) Campoli was standing next to the dresser about two arms' lengths away, and said "Let's put that down, and we'll look at it later." (Id. ) Canell told Campoli to "get the hell outta there." (Id. ) Campoli went to reach for Canell's leg with one hand and the gun with the other hand. (Id. at 19–20, Campoli Dep. 39–40.) Canell said "get the hell outta here" and at the same time took the gun away from his head and pointed it directly at Campoli, waving it up and down between the height of Campoli's chest and stomach. (Id. at 32–33, Campoli Dep. 73–74.) Campoli stood straight back up, her leg and hand touching the side of the dresser, and could not move. (Id. at 20, Campoli Dep. 40.) Campoli claims that Canell then pulled the trigger while the gun was about an arm's length away from her. (Id. at 20–21, Campoli Dep. 40–41.) The bullet hit the dresser next to Campoli. (Id. at 21, Campoli Dep. 41.) Canell then put the gun to his head again. (Id. at 22, Campoli Dep. 42.) Campoli said, "You don't wanna do that.... No, no, no, you don't want to do that." (Id. at 23, Campoli Dep. 43.) Canell again said, "Get the hell outta here." (Id. )

Campoli stood there for a moment, realized there was nothing she could do for him, and ran to the kitchen to try to find the phone. (Id. at 23–24, Campoli Dep. 43–44.) She realized it was in the living room near the recliner, so she went to the recliner, reached over it, and grabbed the phone. (Id. at 25, Campoli Dep. 45.) She heard the sound of Canell's walker behind her. (Id. ) She turned to run out the door with the phone, but her left foot was stuck under the recliner. (Id. at 26, Campoli Dep. 46.) Campoli twisted and felt a snap in her lower back, and fell to the ground on her hands and knees. (Id. ) Campoli crawled to the front door, and as she opened it she heard another gunshot. (Id. at 27, Campoli Dep. 47.) Once outside, she dialed 911. (Id. at 29, Campoli Dep. 49.) It is undisputed that Canell died of a self-inflicted gunshot wound that day.

Campoli sued Canell in Indiana state court for compensation for injuries to her back, leg, and knee from the fall, and for emotional distress. (DE # 1–2.) Plaintiff Allstate, the carrier for a homeowner's insurance policy purchased by Canell, brought the present declaratory judgment action in this federal forum against Campoli and Canell's estate ("the Estate"), and moved for summary judgment, asking the court to declare as a matter of law that it owes no duty to pay under Canell's policy. (DE # # 1, 34.) Allstate's argument is that the insurance policy excludes coverage from injury resulting from intentional or criminal acts of Canell. (DE # 34.) The Estate responded, arguing that a question of fact exists regarding Canell's intent. (DE # 65.) The motion is fully briefed and ripe for ruling.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 56 requires the entry of summary judgment, after adequate time for discovery, against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In responding to a motion for summary judgment, the non-moving party must identify specific facts establishing that there is a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Palmer v. Marion County, 327 F.3d 588, 595 (7th Cir.2003). In doing so, the non-moving party cannot rest on the pleadings alone, but must present fresh proof in support of its position. Anderson, 477 U.S. at 248, 106 S.Ct. 2505 ; Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir.1994). A dispute about a material fact is genuine only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. If no reasonable jury could find for the non-moving party, then there is no "genuine" dispute. Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).

The court's role in deciding a summary judgment motion is not to evaluate the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Anderson, 477 U.S. at 249–50, 106 S.Ct. 2505 ; Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir.1994). In viewing the facts presented on a motion for summary judgment, a court must construe all facts in a light most favorable to the non-moving party and draw all legitimate inferences and resolve all doubts in favor of that party. NLFC, Inc. v. Devcom Mid–Am., Inc., 45 F.3d 231, 234 (7th Cir.1995).

III. DISCUSSION

Allstate seeks a declaration that it is not required to pay under two types of coverage, enumerated "X" and "Y" in the policy. Coverage X is entitled "Family Liability Protection" and Coverage Y is entitled "Guest Medical Protection." Both coverages contain an identical exclusion, which states that Allstate will not pay for any injuries:

intended by, or which may reasonably be expected to result from the intentional or criminal acts or omissions of any insured person. This exclusion applies even if:

a) such insured person lacks the mental capacity to govern his or her conduct;

b) such [injury] is of a different kind or degree than intended or reasonably expected; or

c) such [injury] or property damage is sustained by a different person than intended or reasonably expected.

This exclusion applies regardless of whether or not such insured person is actually charged with, or convicted of a crime.

(DE # 1–1 at 43, 45; Policy at 19, 21.)

Allstate argues that both the exclusions for "intentional" acts and the exclusion for "criminal" acts apply in this case. However, neither party devotes more than half of a page to the criminal acts exclusions in any brief. (See DE # 34 at 14, DE # 66 at 11, DE # 65 at 24.) Because the parties, including the movant Allstate, have treated the criminal acts exclusions as an afterthought, the court declines to consider Allstate's motion as containing a serious request of a declaration regarding whether the criminal acts exclusions apply in this case. Allstate is free to brief this issue in a more complete manner before the end of the dispositive motion period in this case, if it so chooses. For now, the court focuses solely on...